Our concern in this regard is heightened by the self-evident "The use of brackets indicates that the Subcommittee has not To use a homely expression, we are indeed being urged to "buy a pig in a poke." We are totally unable to determine the final nature of the bill, whether of a repressive or progressive nature, until the "brackets" are removed. "Bracketed" material includes many of the most important issues presenting civil liberties questions Thus, we are simply unable to appraise intelligently the position the subcommittee will eventually take on the all-important question of expansion of federal criminal jurisdiction. We are heft imilarly in the dark as to auch key provisions as Espionage, the anti-riot act, the effect of extortion and blackmail on labor activities, the notes and bounds of the anti-riot section, and the provisions dealing with the draft and military-related crimes. What we can reasonably do is to anticipate that there will be "horse-trading on some or all of these and other issues in a way that will be inimical to the Bill of Rights, not only in their final resolution within this Subcommittee, but later, in the full Judiciary Committee, on the floor of the House, and, eventually, in the conference committee, assuming that the Senate passes the somewhat modified version of S. 1437 which is scheduled to be introduced, We do not regard the benefits of a modernized, prosecutor-oriented federal criminal code (Mann Report, pp. 2-3) to outweigh in any manner the serious inroads upon the Bill of Rights.which adoption of repressive provisions and unwarranted extension of federal jurisdiction (Mana Report, p. 2) will inevitably present. We further vigorously object to the haste with which this incomplete bill is being prematurely the subject of truncated open public hearings. The presence of so many "brackets" makes clear that this massive bill is markedly incomplete in important respects. Yet it appears likely that the Subcommittee will limit the hearings to perhaps only seven days, and similarly limit the number of organisations and individuals permitted to testify. We respectfully urge the Subcommittee to aba ndon this unwise course and, instead, to open up the hearings to all individuals and organisations. In this regard we further urge that the Subcommittee conduct regional public hearings throughout the entire country, so that there would be public hearings in, for example, New York, Newark, Boston, Chicago, San Francisc the like. We particularly request that such hearings be held in th Peter W. Rodino Federal Building in Newark, Newark is the home of the Judiciary Committee's distinguished chairman and, I am one of his constituents. Haste in rushing this to the full Judiciary Committee is markedly avio. It should not be hurried into legislative conside 90-232 0 82 - 42 Criticism Sentencing election will be held in 1980. To the direct contrary, the fact that we are approaching an election year should give particular pause to this Subcommittee as to the civil liberties dangers thereby presented. There is every probability that members of Congress, eager to a ppeal to fear of street crime and a law-and-order mentality in an election year, will regard this omnibus bill as a veritable Christmas tree on which they will hang repressive provisions to the point where the attempts of the Subcommittee to draft a bill that does not endanger the Bill of Rights will be totally overridden the New Jersey Coalition to Defend the Bill of Rights regards the latter danger as both real and unacceptable. We oppose this omnibus code proposal accordingly for the identical reasons that we oppose any proposed convention to draft amendments to the Constitution of the United States. There is every probability of the procedure getting totally out of hand in both cases to the permanent damage of the Bill of Rightside Even with respect to the existing language of the Subcommittee print, we find sufficient provisions on which the Subcommittee has either agreed or with respect to which there are bracketed provisions adopting proposed language which contains civil liberties dangers that we are forced to conclude, as we did in our analysis of parallel provisions in S. 1437 (House Hearings, Part 1, p. 607), that from the civil liberties viewpoint, there is much in the Subcommittee print which provides a blueprint of prosecutor-oriented provisions that will make it possible for the government to intimidate and curb the use of First Amendment and other constitutional freedoms in times of fugure stuggle for preservation of the standard of living and to preserve the Bill of Rights liberties this country holds dear. In addition, the committee print unwisely adopts, with certain modifications, virtually the same approach toward sentencing as did 8. 1437. It does so despite the fact that the distinguished Chairman of this Subcommittee, Hon. Robert F. Drinan, took a position in the hearings before the Mann Subcommittee of the 95th Congress, 2d Seas,, paralleling the identical criticisms which we then made and now repeat of the regressive and repressive approach toward sentencing marking 8, 1437. (Testimony of Rep. Robert F. Drinan, House Hearings, PP. 2299-2309). Mann The Subcommittee Report has strongly corroborated the vigorous orttel which we made in our testimony of last year wit respect to the seakanning provisions of the bill (House Hearings, Part 1, pp. 622-625;629-630;701-720). It remains emphatically true that the Subcommittee print emerges from analysis of its sentencing, penology and corrections provisions as an ill-contrived scheme replete with unworkable panaceas (Hearings, p. 607). It tracks S. 1437 in this regard, This Subcommittee has unwisely approved provisions which will résult in clearly extended and expanded incarceration, even though there has been a laudable attempt to curtail the maximum length of sentences. Already overcrowded federal prisons will be further filled. Parole will be Virtually eliminated. Probation will be sharply curtailed. Imaginative program for release of the lawbreaker to Halfway Houses and other community-based programs under close supervision will be minimized or largely ignored even though they afford real hope of ending Faol di via In view of the fact that a large proportion of those Incarcerated in federal prisons are blacks, Chicanon, and members ofő other minorities, this extension of imprimément coupled sim increase prosecutorial discretion, will have an inevitable racist We do not make these charges lightly or without documentation, I am sutting to the staff of the Subcommittee some 30 detailed analyses of various controversial areas of this proposed legislation, The present statement and these separate analyses will deal with the seemingly innumerable dangers to civil liberties which are clearly presented by S. 1437 and, to a somewhat lesser extent, by this subcommittee bill. We ask the members of the Suboomittee, of the full Judiciary Committee, and, indeed, all members of the House and Senate to ponder, long and hard, on both the unanimous recommendations of their colleagues in the Mann Report, and on the objections to the pending legislation included in these analyses submitted on behalf of the New Jersey Coalition to Defend the Bill of Rights. I noted in my statement submitted last year to this very subcommittee that in my Belief each generation holds the Bill of Rights in trust for future generations. I added that it is my profound belief that each of us who has an opportunity to defend the Bill of Rights must do so. In our view, the Subcommittee last year fully recognized its responsibility in this regard. We believe that this Subcommittee has to this point spent many hours attempting to draft a proposed bill which would adequately balance the competing interesta in this important area of the law. We applaud the efforts of the subcommittee to formulate legislation that protects and preserves individual rights. Nevertheless, we are of the view that the subcommittee's bill is fatally flawed, particularly because it has eroneously adopted thus far the omnibus approach to federal criminal law legislation which, we believe, will undercut its opendable respect for Bill of Rights freedoms. Accordingly, we urgently request the Subcommittee to reconsider its basic approach. Given the realities of an alection year, an inevitabl appeal to "lav norder" fears and hysteria, and the dangers of "horsetrading attendant upon omnibus legislation, we are ca ndidly fearful that any omni bus bill that ultimately goes to conference Committee and is passed in an election year by the two houses of Congress will closely resemble S. 1437 in entirely too many dangerous aspects, Accordingly, this Subcommittee, like the Mann Subcommittee before it, has the historical opportunity and inescapable legislative prevent the erosion of Bill of Rights freedoms madepo saible II. THE OMNIBUS APPROACH TOWARD FEDERAL CRIMINAL LAW CODIFICATION We ask each member of this Subcommittee and each member of Congress to reflect long and hard on the unanimous findings of the Mann Report. The full Judiciary Committee on October 4, 1978, adopted a resolution Commending the Subcommittee on Criminal Justice and its Chairman and ranking minority Member "for their excellent and conscientious work on the general revision of the United States Criminal Code. Mann Report, p. 111. The distinguished members of last year's subcommittee included: Chairman James R. Mann (S. Car.); Hizabeth Holtman, New York; Sam B. Hall, Jr., Texas; Lamar Gudger, North Carolina, Billy Lee Evans, Georgia; Charles E. Wiggins, California, and Henry J. Hyde, Illinois. The Subcommittee was composed of members of divergent political views. However, it unanimously agreed that the omnibus approach taken in S. 1437 was wrong and dangerous. Its cogent reasoning in this regard has persuaded the New Jersey Coalition to Defend the Bill of Rights of the wisdom of its criticism of the omnibus approach, We list below the important findings and conclusions unanimously. reached by the Mann Subcommittee last year and set forth in its Reports 1. "The subcommittee began its analysis of the Senate-passed bill, S. 1437, optimistic that the bill's 'refomed Federal criminal code would be an improvement over current law. The subcommittee conducted a section-by-section analysis and received testimony from a wide variety of individuals and groups. The subcommittee found, however, that little is known of the impact of each change 8. 1437 makes upon individual provisions of current law. It appears that as a result of the omnibus approach, primarily the special interests have been heard, Consequently, the impact of many sections of the bill has not been determined. in even more disturbing result of the failure to thoroughly analyze each individual section is that the overall impact of the bill on the Federal system and on individual liberty is impossible to assess. (Mann Report, p. 1). 2. Expansion of Federal Jurisdiction: The Subcommittee found, as a first serious law in S. 1437, its expansion of federal jurisdiction. It concluded: "The subcommittee believes that the Senate-assed bill, significantly, and unwisely, expands the scope of Federal criminal. Jurisdiction, thus endangering the viability of State courts by increasing the role of Federal courts in the lives of people. This erosion of the Federal system should not be tolerated." The New Jersey Coalition to Defend the Bill of Rights is unable to assess the full extent to which the committee-print will deal with federal jurisdiction. It contains signifificant brackets in 800, 111, dealing with federal jurisdiction. Accordingly, serious dangers are presented, first, that this subcommittee will adopt a formulation in taking out the brackets that will enlarge existing federal Jurisdiction either in Section 111 and the other sections dealing with jurisdiction, or th respect to the jurisdictional basis of particular designated crimes, e.g., murder, Sec. 2301 (p. 71) and manslaughter, Seo, 2302 (p. 72). The issue of expansion of federal criminal jurisdiction is one of the most profoundly dangerous components of S. 1437, po that, second, We must assess the problem of adoption of the S. 1437 formulations as to extended jurisdiction by either the full Judiciary Committee, the full House, or the eventual conference committee. Like the unanimous Mann subcommittee, we regard expansion of federal jurisdiction as a risk that cannot be tolerated. [5.1437] 3. Enhancement of the power and discretion of the prosecutor: The Mann Subcommittee further found that, "The second serious flaw in S. 1437 as passed concerns the extent to which the bill enhances the power and discretion of the prosecutor at the expense of other participants in the Federal criminal justice system. This is true not only be ause of the broadened jurisdiction and scope of many Federal criminal laws but also because the sentencing provisions expand the importanée of the Federal prosecutor at the expense of the dudanden transfer of almost all sentencing District Judge James M. Burns noted, tho se discretion from the court to one of the adversaries in the system, namely, the prosecution." (Mann Report, pp. 2-3). The committee print alosely parallels S. 1437 with respect to the sentencing provisions. Of necessity, it contains the identical flaw of enhancement of the power and discretion of the prosecutor which the Mann Subcommittee unanimously found to be unacceptable. 4. Objectionable New and Untested Sentencing Mechanism The provisions, which create a new and untested sentencing mechanism that virtually deprives the sentencing judge of the ability to tallor criminal sentences to the individual being sentenced. U. 8. Circuit Judge David L. Bazalon pointed out that "'There are infinite ways of characterizing any individual defendant, and which characteristics are relevant must in fact depend upon the particular circumstances of the specific case. By masking these differences, the apparently 'precise' categories of the Sentencing Commission might produce grave injustice: May, for instance, should one defendant receive a different sentence than another simply because his 'physical condition' is different? In some circumstances, one might say this factor will be relevant; in other circumstances it won't but how can one tell in the abstract? (Mann Report, p. 3). 5. Overcrowding of Federal Prisons and Failure to aphasize Alternatives to imprisonment: The new sentencing mechanis proposed in S. 1437, moreover, will lead to further overcrowding of Federal correctional facilities, a matter compounded by the bill's failure to emphasize alternatives to imprisonment and pretrial diversion programs. Adequate measures in that regard are essential, not only from the standpoint of humane and effective correction programs, but also from an economic standpoint, given the high Bost of housing and caring for prisoners." (Mann Report, p. 3). We recognize that the committee print is not identical with S. 1437 or the latter's successor. Nevertheless, it is our conclusion that the committee print too will lead to overcrowding of federal prisons and that it is unacceptable in its sentencing provisions because of its parallel failure to emphasize adequa taly alternatives to imprisonment. 6. Dangers of Trade-offs : In what we regard as one of the most profound appraisales of what is wrong with omnibus criminal code legislation, the Mann Subcommittee noted (Mann Report, pp. 3-4) 8 |